Commonwealth v. Heath
| Decision Date | 19 June 1981 |
| Citation | 431 A.2d 317,288 Pa.Super. 119 |
| Parties | COMMONWEALTH of Pennsylvania v. Bonnie Jean HEATH, Appellant. |
| Court | Pennsylvania Superior Court |
Argued March 18, 1981.
Winifred H. Jones-Wenger, Philadelphia, for appellant.
William J. Haberstroh, Sp. Asst. Atty. Gen., Altoona, for Commonwealth, appellee.
Before PRICE BROSKY and MONTEMURO, JJ.
On January 31, 1977, appellant was convicted by a jury of robbery [1] conspiracy, [2] and violation of the Uniform Firearms Act. [3] Post-verdict motions in arrest of judgment and for a new trial were denied and appellant was sentenced to consecutive terms of imprisonment of from ten to twenty years on the robbery charge and from five to ten years on the conspiracy charge. A concurrent one to two year term of imprisonment was imposed for the firearms violation. In this appeal from the judgment of sentence, appellant contends, inter alia, that the trial court abused its discretion by denying her motion for a change of venue on the basis of prejudicial pretrial publicity. For the reasons which follow, we are constrained to agree and thus reverse the judgment of sentence and remand the case for a new trial. [4]
The charges against appellant arose from an armed robbery at the Shaw Oil Company, a gasoline station in Allegheny Township, Blair County, on March 11, 1976. During the robbery appellant's accomplice and subsequent co-defendant, Jeffrey Joseph Daugherty, shot and killed eighteen year old George Karns, the lone attendant at the station. After taking approximately $400.00 in cash Daugherty and appellant drove south in a 1964 white Thunderbird bearing Michigan license plates. [5]
On the following day, March 12, 1976, appellant and Daugherty were apprehended in Buckingham County, Virginia, shortly after the commission of an armed robbery of a small grocery store. At the time of their arrest, appellant and Daugherty were traveling in the same automobile they had used in Blair County. A search for the vehicle by the Virginia State Police produced the .25 caliber handgun used in the Karns homicide as well as Karns' wallet and other items connected with various crimes committed in Blair County.
On March 20, 1976, criminal complaints were filed in Blair County charging appellant and Daugherty with criminal homicide, robbery, conspiracy, and firearms violations. Shortly thereafter, the District Attorney of Blair County instituted proceedings pursuant to the Uniform Criminal Extradition Act (hereinafter Extradition Act) [6] to extradite appellant and her co-defendant from Virginia. On or about July 12, 1976, appellant and Daugherty were tried and convicted of armed robbery and firearms violations in Buckingham County, Virginia. Sentence was imposed, and appellant began serving her sentence at the Virginia Correctional Center for Women in Goochland County, Virginia. By letter dated July 19, 1976, the Secretary of the Commonwealth of Pennsylvania informed the District Attorney of Blair County that all of the extradition documents relating to appellant had been returned by Virginia. Enclosed with the July 19 letter was a copy of a letter dated July 14, 1976, from the Secretary of the Commonwealth of Virginia to the Governor of Pennsylvania advising him that appellant had been found guilty and sentenced by a Virginia court. The July 14 letter suggested that the Governor of Pennsylvania might "wish to proceed under the agreement on detainers." (N.T. 111, November 23-24, 1976). Shortly after learning that the extradition documents had been returned, the District Attorney of Blair County sought appellant's return pursuant to the Interstate Agreement on Detainers (hereinafter Detainers Agreement). [7] Appellant and Daugherty were subsequently returned to Blair County on September 27, 1976.
Following a preliminary hearing on October 7, 1976, counsel for appellant filed numerous pretrial motions, including a motion to dismiss for violation of Pa.R.Crim.P. 1100 and a petition for change of venue. These motions were consolidated for hearing with motions filed on behalf of appellant in an unrelated case involving the robbery and murder of Mrs. Elizabeth Shank on March 9, 1976. After hearing all motions on November 23 and 24, 1976, the court below denied, inter alia, the Rule 1100 motion and the petition for change of venue.
On November 30, 1976, appellant and Daugherty were tried for the Shank robbery-murder. On December 8, 1976, the jury found appellant guilty of robbery and conspiracy, but acquitted her of the homicide charge. [8] Trial in the instant case was scheduled to commence immediately upon conclusion of the first trial. However, appellant's motion for a continuance was granted by the trial court on December 11, 1976. Appellant filed a second petition for change of venue, which was denied by the trial court on January 10, 1977. Trial in the case sub judice began on January 17, 1977.
Pa.R.Crim.P. 1100(a)(2) provides that "(t)rial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." As noted, a criminal complaint was filed against appellant on March 20, 1976. Thus, the initial run date for Rule 1100 purposes was September 16, 1976. Trial actually began on January 17, 1977. Consequently, unless at least 122 days are excluded from calculation of the run date under Rule 1100(d) [9] or justified by an extension of the run date granted under section (c) [10] of the Rule, appellant must be discharged.
The trial court concluded that, despite the Commonwealth's due diligence in seeking appellant's return from Virginia, appellant was unavailable from March 20, 1976 to September 27, 1976, and, therefore, those 191 days were excludable under Rule 1100(d)(1). Appellant contends the court below erred in finding that the Commonwealth was duly diligent in seeking her return. She argues that due diligence was lacking because the prosecution unnecessarily delayed her return to Pennsylvania by proceeding initially under the Extradition Act rather than under the Detainers Agreement. We disagree.
It is well settled that an accused is not deemed unavailable for Rule 1100 purposes merely because he or she is incarcerated elsewhere. Commonwealth v. Smith, 274 Pa.Super. 229, 418 A.2d 380 (1980); Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978); Commonwealth v. Clark, 256 Pa.Super. 456, 390 A.2d 192 (1978). In Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978), we observed that:
Rule 1100(d)(1) provides that "(i)n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant or his attorney." Mere incarceration in another jurisdiction does not make appellant unavailable. Appellant will be considered unavailable only for the period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Richbourgh, 246 Pa.Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977). "There is no question, therefore, that the duty imposed on the Commonwealth by Rule 1100 to bring a defendant to trial within the prescribed period is not affected by the fact of his incarceration elsewhere...." Commonwealth v. McCafferty, 242 Pa.Super. 218, 224, 363 A.2d 1239, 1241 (1976).
Id. at 135, 393 A.2d at 1049 (emphasis added). See generally Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977).
The instant record belies appellant's contention that the Commonwealth failed to exercise due diligence in seeking appellant's return to Pennsylvania. At the hearing on appellant's Rule 1100(f) [11] motion to dismiss the charges, the District Attorney of Blair County testified that he commenced proceedings under the Extradition Act by preparing the necessary documents within one or two days after the filing of the criminal complaint on March 20, 1976. The extradition documents were forwarded to the Governor of Pennsylvania on April 2, 1976. Their receipt was acknowledged in a letter addressed to the district attorney from the Secretary of the Commonwealth of Pennsylvania dated April 8, 1976. The district attorney further testified that he was notified, by letter dated April 23, 1976, that the extradition documents had been received by authorities in Virginia. (N.T. 110-11, November, 23-24, 1976). As noted previously, the Secretary of the Commonwealth of Pennsylvania subsequently informed the district attorney on July 19, 1976, that the extradition documents had been returned by Virginia following appellant's conviction in that state. The district attorney described his subsequent action as follows:
Upon receipt of the letter of July 19, 1976 from the Secretary of the Commonwealth of Pennsylvania, I contacted the Attorney General's office of Pennsylvania and requested that they make inquiry of the Department of State of the Commonwealth of Virginia, first the Commonwealth of Pennsylvania then the Commonwealth of Virginia, for an explanation as to why the extradition papers had been returned. The only answer I was ever able to obtain was that the State of Virginia preferred that the matter be handled by a detainer process since the prisoner was now regarded as a sentenced prisoner within the Commonwealth of Virginia. I was further advised by the office of the Attorney General of Pennsylvania that it was the view of the Chief Law Enforcement Officer of this Commonwealth, the Attorney General, that the return of the papers from the Commonwealth of Virginia was a matter over which he, the Attorney General of Pennsylvania,...
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